[Federal Register Volume 63, Number 149 (Tuesday, August 4, 1998)]
[Rules and Regulations]
[Pages 41404-41418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20760]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Regulations Nos. 4 and 16]
RIN 0960-AD73
Federal Old-Age, Survivors, and Disability Insurance and
Supplemental Security Income for the Aged, Blind, and Disabled;
Standards of Conduct for Claimant Representatives
AGENCY: Social Security Administration.
ACTION: Final rules.
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SUMMARY: We are amending our rules governing representation of
claimants seeking Social Security or supplemental security income (SSI)
benefits under title II or XVI of the Social Security Act (the Act), as
amended. The final rules establish standards of conduct and
responsibility for persons serving as representatives and further
define our expectations regarding their obligations to those they
represent and to us. The final rules include statutorily and
administratively imposed requirements and prohibitions.
EFFECTIVE DATE: This regulation is effective September 3, 1998.
FOR FURTHER INFORMATION CONTACT: Robert J. Augustine, Legal Assistant,
Office of Process and Innovation Management, Social Security
Administration, 6401 Security Boulevard, Baltimore, MD 21235, (410)
966-5121. For information on eligibility or claiming benefits, call our
national toll-free number, 1-800-772-1213.
SUPPLEMENTARY INFORMATION:
Background
Prior regulations governing representatives' conduct
(Secs. 404.1740, et seq. and 416.1540, et seq.) under titles II and
XVI, of the Act, primarily reiterate various statutory provisions set
forth in the Act. Sections 404.1745 and 416.1545 also provide that a
representative may be suspended or disqualified from practice before
the Social Security Administration (SSA) if he or she has violated
those rules, been convicted of a violation of sections 206 or
1631(d)(2) of the Act, respectively, or ``otherwise refused to comply
with our rules and regulations on representing claimants in dealings
with us.'' This is consistent with sections 206(a)(1) and 1631(d)(2) of
the Act, which provide that the Commissioner of Social Security (the
Commissioner) may ``suspend or prohibit from further practice before
him any such person, agent, or attorney who refuses to comply with the
Commissioner's rules and regulations * * *'' (Section 206(a)(1) is
[[Page 41405]]
incorporated into title XVI of the Act by section 1631(d)(2)(A) of the
Act.) Since their inception, the regulations have reflected the
Commissioner's (formerly the Secretary of Health and Human Services')
broad authority over matters involving representatives' activities in
their dealings with us.
These final rules are based on the notice of proposed rulemaking
(NPRM) published in the Federal Register on January 3, 1997 (62 FR
352). Specifically, they provide enforceable standards governing
aspects of practice, performance and conduct for all persons who act as
claimants' representatives. The final rules also recognize the
increased participation of compensated representatives in the
adjudicative process, the special circumstances presented by SSA's
nonadversarial administrative process including its hearings, and
statutory changes, such as the anti-fraud provisions of the Social
Security Independence and Program Improvements Act of 1994, Public Law
(Pub. L.) 103-296. The prior regulations pertaining to representatives'
conduct had been largely unchanged since their promulgation in 1980,
and no longer adequately addressed our experience concerning the
extensive participation of representatives in the claims process.
We take seriously our statutory responsibility to ensure that
claimants are represented properly during the claims process.
Therefore, we are publishing these rules to improve the efficiency of
our administrative process and to ensure that claimants receive
competent services from their representatives. While we recognize that
most representatives do a conscientious job in assisting their clients,
our experience has convinced us that there are sufficient instances of
questionable conduct to warrant promulgation of additional regulatory
authority. The prior regulations did not address a representative's
responsibility to adequately prepare and present the claimant's case
among other deficiencies. These final rules correct these omissions and
are necessary to protect the claimant and the adjudicative process from
those individuals who are incapable of providing, or unwilling to
provide, meaningful assistance in expeditiously resolving pending
claims.
Although there are disparities in the levels of skill, experience,
education and professional status among those who serve as
representatives, we believe all such individuals must be bound by the
same set of rules. In determining the appropriate standards, we
considered the requirements and intent of the Act and its implementing
regulations, administrative law principles applicable to adjudication
and the American Bar Association's (ABA's) Model Rules of Professional
Conduct and Model Code of Professional Responsibility.
There are comparable rules in part 410, subpart F (Secs. 410.684,
et seq.) governing representative conduct under the Black Lung benefits
program. We are not revising those rules, however. Executive Order
12866, Regulatory Planning and Review, issued by the President on
October 4, 1993 (58 FR 51735), provides that ``Federal agencies should
promulgate only such regulations as are required by law, are necessary
to interpret the law, or are made necessary by compelling public need *
* *.'' Because we process a very small number of claims involving Black
Lung benefits, and the concerns giving rise to these rules have not
affected those claims, there is no compelling need to revise the Black
Lung rules.
We expect that the final rules will further clarify the obligations
of representatives to provide competent representation of their
clients, in accordance with the procedural and evidentiary requirements
of the claims process. Moreover, the final rules constitute official
notice concerning our requirements and prohibitions.
In drafting the proposed rules, we obtained information from
various sources to address the concerns of claimants and others with a
stake or interest in the issue of claimant representation; for example,
we conducted focus groups with claimants and beneficiaries as part of
our disability process redesign initiative. Participants in the public
dialogue conducted in conjunction with our redesign initiative
frequently noted the lack of timely or effective assistance on the part
of claimants' representatives. We also used information gathered in
investigating nearly 600 complaints involving misconduct by
representatives from 1988 to 1997. In light of complaints about the
quality and effectiveness of representatives' services, the Disability
Process Redesign Team included within its recommendations provisions
aimed at representatives' performance.
In addition, in February 1995 we requested comments on a draft
proposal from 33 separate groups and organizations drawn from the
attorney and non-attorney claimant representative community. These
groups included professional organizations, interest groups, think
tanks, legal services organizations, and various private representative
organizations. We received 92 responses to this informal request. Many
were supportive, especially regarding the need to provide standards for
non-attorney representatives. Many, however, were opposed to more
regulation of their professional conduct. We carefully considered all
the views and concerns in formulating the proposed rules, which we
published in the Federal Register on January 3, 1997. Similarly, we
considered the public comments received on the proposed rules, in
formulating these final rules.
Regulatory Provisions
These final regulations revise Secs. 404.1740, 404.1745, 404.1750,
404.1765, 404.1770, 404.1799, 416.1540, 416.1545, 416.1550, 416.1565,
and 416.1599.
We revised Secs. 404.1740(a) and 416.1540(a) to explain the purpose
and scope of these rules which are intended to ensure that
representatives provide competent services to their clients and comport
themselves in accordance with our rules and standards. Accordingly, the
rules set forth affirmative duties and prohibited actions that shall
govern the relationship between the representative and the Agency.
We revised Secs. 404.1740(b) and 416.1540(b) to include affirmative
duties, which are certain obligations that a representative must
actively perform in his or her representation of claimants in matters
before us. We expect these affirmative duties to promote competence,
diligence, and timeliness in assisting the claimant to meet the burden
of proving eligibility for benefits.
We have not changed the regulations concerning our existing duties
and responsibilities with regard to developing the record and obtaining
evidence nor have we changed our expectations concerning what will be
required of claimants (see Secs. 404.1512 and 416.912 concerning
disability and blindness claims). Therefore, we will continue to carry
out our existing responsibilities in this regard. Under these rules,
however, representatives will be expected to assist claimants in
meeting their obligations with respect to submitting information and
evidence and responding to our requests in conformity with our existing
regulations.
New Secs. 404.1740(b)(1) and 416.1540(b)(1) clarify that a
representative should act with reasonable promptness to obtain and
submit to us the information and evidence that the claimant wants the
decision maker to consider in ruling on a claim. Based on the comments
we received on the proposed rules we published, we revised the wording
of
[[Page 41406]]
these sections to more closely track other existing regulatory
requirements. In disability and blindness claims, the new provisions
include the obligation to assist the claimant in complying with
Secs. 404.1512(a) and 416.912(a) which require claimants to bring
information and evidence to our attention and to furnish medical and
other evidence to us.
New Secs. 404.1740(b)(2) and 416.1540(b)(2) require that the
representative assist the claimant in complying, as soon as
practicable, with our requests for information or evidence. In
disability and blindness claims, this includes the obligation to assist
the claimant in providing, upon our request, evidence pursuant to
Secs. 404.1512(c) and 416.912(c).
Based on the public comments we received, we deleted proposed
Secs. 404.1740(b)(2)(i) and 416.1540(b)(2)(i), which would have
required that the representative provide, upon request, information
regarding the claimant's medical treatment, vocational factors or other
specifically identified matters, or provide notification that the
claimant does not consent to release the information. We also deleted
proposed Secs. 404.1740(b)(2)(ii) and 416.1540(b)(2)(ii), which would
have required that the representative provide, upon request, all
evidence and documentation pertaining to specifically identified issues
which the representative or claimant already has or may readily obtain.
We deleted these proposed requirements to more closely track the
existing regulatory requirements that explain a claimant's duties and
responsibilities with regard to submitting evidence and providing
information.
In new Secs. 404.1740(b)(3) and 416.1540(b)(3), we set forth
minimum requirements governing the competency, diligence and behavior
of representatives in their dealings with us. Based on the comments we
received, we revised these sections to more closely track the language
of model codes concerning competency and diligence of representatives.
In new Secs. 404.1740(b)(3)(i) and 416.1540(b)(3)(i), we establish
an affirmative duty of competency. This includes the requirement that a
representative know the significant issue(s) in a claim and have a
working knowledge of the applicable provisions of the Act, the
regulations and the Rulings. A representative should also know how to
obtain and submit evidence regarding the claim.
In new Secs. 404.1740(b)(3)(ii) and 416.1540(b)(3)(ii), we require
that the representative act with reasonable diligence and promptness.
This includes providing prompt and responsive answers to our requests
and communications pertaining to the pending claim. A representative
may not ignore official communications.
We deleted proposed Secs. 404.1740(b)(3)(iii) and
416.1540(b)(3)(iii), which would affirmatively have required
cooperation in developing the record. We believe that cooperation is
inherent in competency and diligence, and that representatives should
cooperate with us in such matters as releasing medical records,
scheduling consultative examinations and scheduling conferences or
hearing dates. Therefore, a separate rule would be redundant.
In revised Secs. 404.1740(c) and 416.1540(c), we describe
prohibited actions, which are certain acts or activities that a
representative must avoid. In part, the prohibited actions incorporate
various statutory provisions set forth in the Act and other
legislation.
We based new Secs. 404.1740(c)(1) and 416.1540(c)(1) on the
prohibitions (e.g., threatening or coercing a claimant) set forth in
Secs. 206(a)(5) and 1631(d)(2) of the Act, and these sections are self-
explanatory. A representative's honest mistake would not be construed
as knowingly misleading a claimant. In determining whether a
representative knowingly misled a claimant, we will consider whether
the action involved matters that the representative should have known
were untrue.
We based new Secs. 404.1740(c)(2) and 416.1540(c)(2) on the
provisions of sections 206(a) and (b) and 1631(d)(2) of the Act which
provide briefly that representatives are eligible for reasonable fees
for representing a claimant, and these sections apply to all fee
collections. With regard to section 206(a)(4) of the Act, we will
assume, in the absence of evidence to the contrary, that work performed
by support staff in a law office is performed under the supervision of
an attorney, thereby permitting the attorney to validly claim direct
payment from past-due benefits for those services in a title II claim.
This assumption will not apply, however, when a person other than an
attorney appears alone at a hearing to provide representation on behalf
of a claimant. In those cases, the person appearing alone at the
hearing shall be considered the representative and will be required to
file a fee petition or fee agreement for his or her services, and will
not be entitled to receive direct payment from past-due title II
benefits for the representation at the hearing.
Generally, we based new Secs. 404.1740(c)(3) and 416.1540(c)(3) on
the criminal prohibitions in 18 U.S.C. 1001 and the provisions
governing civil monetary penalties and assessments set forth in section
1129 of the Act. These sections are self-explanatory.
New Secs. 404.1740(c)(4) and 416.1540(c)(4) are directed against
practices where improper acts or omissions by the representative,
without good cause, have the effect of unreasonably delaying the
disposition of a claim for benefits.
We based new Secs. 404.1740(c)(5) and 416.1540(c)(5) on the
provisions of section 1106 of the Act, which prohibit disclosure by any
person of information obtained by the Agency in conjunction with a
claim, except as may be authorized by regulations prescribed by us. The
intent is to prohibit disclosure of information regarding a claimant
without the claimant's consent.
In new Secs. 404.1740(c)(6) and 416.1540(c)(6), we prohibit a
representative from offering or giving anything of value to persons
involved in the adjudication of a claim except as remuneration to a
witness for legitimate expenses or for services rendered. The intent is
to prevent the appearance of influencing, or attempting to influence,
the disposition of a claim by bestowing gifts or favors on individuals
in a position to materially affect the outcome of the adjudication of a
claim.
New Secs. 404.1740(c)(7) and 416.1540(c)(7) apply to conduct
undertaken during the course of oral proceedings which is disruptive
and detrimental to due process and the administration of justice.
In new Secs. 404.1740(c)(7)(i) and 416.1540(c)(7)(i), we prohibit
repeated absences from or persistent tardiness at scheduled proceedings
without good cause because such conduct adversely affects claimants,
diminishes the ability of the Agency to operate efficiently and harms
other applicants by disrupting schedules and work flow.
In new Secs. 404.1740(c)(7)(ii) and 416.1540(c)(7)(ii), we address
deliberate acts which have the effect of disrupting the proceedings or
diverting the attention of the participants from the purpose of the
hearing to matters irrelevant to the merits of the case.
New Secs. 404.1740(c)(7)(iii) and 416.1540(c)(7)(iii) are based in
part on the provisions of sections 206(a)(5) and 1631(d)(2) of the Act,
18 U.S.C. 111 and 28 CFR 64.2(x) and (aa). These provisions prohibit
threatening or intimidating conduct directed at the participants in an
oral proceeding or the employees assigned to our offices, which has the
effect of disrupting the proceeding. We will not tolerate actual or
implied threats of violence.
[[Page 41407]]
In revised Secs. 404.1745 and 416.1545, we explain that we may
begin proceedings to suspend or disqualify a person who does not meet
our qualifications for a representative or who violates our rules and
standards governing representatives in their dealings with us.
We modified Secs. 404.1750(a) and (d), 404.1765(a) and (e),
404.1799(c) and (e), 416.1550(a) and (d), 416.1565(a) and (e), and
416.1599(c) and (e), to reflect current Agency official titles and
organizational changes.
We revised Secs. 404.1765(g)(3) and 416.1565(g)(3) to remove the
first word ``not'' from each paragraph. This corrects errors made when
the regulations on representation of parties were reorganized,
renumbered and republished on August 5, 1980 (45 FR 52078). When the
original regulation was published as Sec. 404.983(f) on April 26, 1969
(34 FR 6973, 6974), it provided that ``[i]f the individual has filed an
answer and if the hearing officer believes that there is relevant and
material evidence available which has not been presented at the
hearing, the hearing officer may at any time prior to the mailing of
notice of the decision, or submittal of a recommended decision, reopen
the hearing for the receipt of such evidence.'' This is consistent with
the preceding language in Sec. 404.983(f), which states that if a
representative ``has filed no answer he shall have no right to present
evidence * * * .''
In the 1980 final rule, the former Sec. 404.983(f) was renumbered
as Sec. 404.1765(f), with a parallel title XVI provision at
Sec. 416.1565(f). Paragraph (f)(2) addressed representatives who do not
answer charges and paragraph (f)(3) addressed those who do. Paragraph
(f)(3) (45 FR 52078, 52093, 52108) contained a misprint, however, which
read, ``If the representative did not file an answer to the charges * *
* .'' Thus, paragraphs (f)(2) and (f)(3) were inconsistent and
conflicting. Subsequently, in 1991, paragraph (f) of Secs. 404.1765 and
416.1565 was redesignated as paragraph (g) (56 FR 24129, 24131, 24132).
The 1980 misprint substantively changed the meaning of current
paragraph (g)(3). As specifically explained in the preamble to the 1980
rules, however, SSA never intended to make any substantive changes to
the regulations. The regulations were rewritten for the purpose of
reorganizing and restating them more clearly in simpler language. The
misprint has created confusion in the representative disciplinary
process. Consequently, we are taking this opportunity to correct the
error to reflect the original intent of the regulations.
We also are correcting another minor misprint in the prior
Sec. 404.1765(g)(3) by making ``decisions'' singular for correctness
and consistency with Sec. 416.1565(g)(3).
Finally, we are amending Sec. 404.1770, paragraphs (a)(3) and
(b)(3), to correct a publication error that occurred after paragraph
(a)(3) was revised in 1991. As correctly published in final rules on
May 29, 1991 (56 FR 24129, 24132), paragraph (a)(3) was revised to show
that the hearing officer shall mail a copy of the decision to the
parties at their last known addresses. When codified in the 1992 volume
of the Code of Federal Regulations, however, the revised language of
paragraph (a)(3) was erroneously placed in paragraph (b)(3),
superseding that existing language addressing the effect of a final
decision imposing a suspension upon a representative. This correction
accurately reflects the language and purpose of paragraphs (a)(3) and
(b)(3) and brings Sec. 404.1770 into conformity with its equivalent
Sec. 416.1570.
Public Comments
When we published the NPRM, we provided the public a 60-day comment
period. We received comments from over 70 individuals and
organizations. These included comments referred to us by members of
Congress, and comments from legal services organizations, the American
Bar Association (ABA), the National Organization of Social Security
Claimants' Representatives (NOSSCR), the Association of Administrative
Law Judges, Inc., and other associations of attorneys, and non-attorney
representatives. We also received comments from individual attorneys,
non-attorney representatives, Administrative Law Judges (ALJs) and
other SSA employees.
Many of the commenters raised concerns that they or previous
commenters raised informally with regard to our draft proposal in
February 1995. Many commenters were opposed to our promulgating any
additional regulations at all concerning representatives. However, we
also received comments from individuals who believed that there is a
need for clarifying regulations and who were supportive of our proposed
rules. Other commenters expressed the idea that we should not regulate
attorneys who practice before us, but should instead regulate non-
attorneys. On the other hand, many non-attorney representatives
supported the idea of uniform national standards for both attorney and
non-attorney representatives.
The greatest concern was with regard to our proposed requirements
concerning the submission of evidence and responding to our requests
for information. In response to these comments and as we have indicated
below, we revised these requirements extensively to conform to other
existing regulations. We have summarized and addressed these statements
in the comments and responses below with the other substantive comments
received.
The ABA expressed substantial reservations about our proposed
standards. The ABA continued to believe, as it did in 1995, that some
of the rules, especially those dealing with disclosure of medical
information and the duty of advocacy for one's client, were far too
broad and that enforcement would place the Agency in the troublesome
position of attempting to override a lawyer's sworn duty to obey the
Rules of Professional Conduct of the jurisdiction in which the lawyer
is licensed to practice. The ABA believed that the proposed rules
continued to include provisions that could give rise to serious ethical
conflicts. The ABA voiced particular objections to our proposal to
place duties on representatives to obtain and submit certain evidence
by certain dates.
NOSSCR raised concerns involving the primacy of State bar rules for
most attorneys, the duty to obtain specific evidence, the duty to
submit evidence by certain dates, and the vagueness of the conduct
deemed overzealous. NOSSCR also objected to what they interpreted as
our attempt to close the record through the use of deadlines. NOSSCR
believed that there was no sound basis for our proposed rules as
drafted and that, in effect, they should not be promulgated. This was a
position taken by other associations of attorneys and individual
attorneys as well.
As we have explained below, in response to the ABA's and NOSSCR's
comments and other comments we have received, we have revised the
particular provisions that generated the most concern to make them
track SSA's other existing regulations. We believe this removes the
areas of greatest concern. For the reasons discussed below, we have not
adopted the suggestion to refer complaints about attorneys to State bar
licensing authorities for appropriate disposition. We have made other
changes to address the objections with regard to wording of particular
provisions and vagueness.
Because some of the comments were quite detailed, we had to
condense, summarize or paraphrase them. We
[[Page 41408]]
have, however, tried to summarize the commenters' views accurately and
respond to all of the significant issues raised by the commenters that
are within the scope of the proposed rules. As we discuss below in
responding to the comments, we have made revisions and additions to the
proposed rules to clarify their intent.
Comment: Some commenters questioned our authority to promulgate
these regulations. One commenter stated that the Act does not
contemplate that SSA would impose standards such as these where such
standards are already set out in State laws that regulate the conduct
of attorneys and others who do business within those states. According
to this commenter, there is no justification for ignoring the regional
differences between states that are a necessary and direct result of
our constitutional system. This commenter also stated that these
regional differences are tolerated in other settings such as the
Federal courts.
Response: The Commissioner has broad rulemaking authority under
sections 205 and 1631 of the Act to promulgate necessary and
appropriate rules, regulations and procedures to carry out the
provisions of titles II and XVI and under sections 206 and 1631(d)(2)
of the Act to ``suspend or prohibit from further practice before him
any such person, agent, or attorney who refuses to comply with the
Commissioner's rules and regulations or who violates any provision of
this section for which a penalty is prescribed.'' It is the
Commissioner who is ultimately responsible for providing decisionmaking
that is timely and efficient and results in an accurate disposition of
a claim. As stated above, these regulations are necessary to address
actual and potential problems impacting the efficiency and integrity of
the administrative process resulting from the participation of
representatives in the claims process and to ensure that claimants'
eligibility for benefits is not prejudiced by ineffective assistance of
their representatives.
In Sperry v. State of Florida, 373 U.S. 379 (1963), Florida sought
to enjoin a non-attorney registered to practice before the United
States Patent Office from preparing and prosecuting patent applications
in Florida because he was not a member of the Florida bar. The Supreme
Court held that the Federal government has pre-emptive powers over
states' legislative and judicial authorities when acting under valid
Federal regulation.
Based on the Commissioner's broad rulemaking authority and the
Federal government's pre-emptive powers, we believe that we have the
authority to promulgate these regulations on a nationwide basis, and
they would supersede any inconsistent state or local rules.
Comment: Many commenters questioned the need for additional
regulations governing the conduct of representatives.
Response: The goal of these regulations is to provide the public,
especially claimants' representatives and claimants, with a uniform,
clearly articulated set of rules that representatives are expected to
follow in representing claimants before SSA. In so doing, we are
informing the public of how we will carry out our statutory obligations
in regard to claimant representation.
We carefully considered the need to provide enforceable standards
governing the practice, performance, and conduct of all persons who act
as claimants' representatives. Under the prior regulations, we were
unable to address some conduct by claimants' representatives that we
believed was inappropriate. For example, under the prior regulations,
we could not address a representative's misconduct during a hearing or
failure to adequately prepare and present the claimant's case.
Moreover, various sources, including claimants, have complained to SSA
and expressed concern about the quality and effectiveness of claimants'
representation. Based on these needs, and our statutory duty to protect
claimants from claimants' representatives who do not comply with Social
Security laws and regulations, we believe that the standards of conduct
for representatives are necessary and that such standards clearly are
in the public interest.
Comment: The majority of responding attorneys, as well as the ABA
and other organizations, complained that, since attorneys' conduct
already is governed by their individual State bar codes of conduct and
ethics rules, separate SSA standards of conduct are redundant and are
an unnecessary infringement on State bar jurisdiction over attorneys.
The ABA and several individuals suggested that SSA establish a system
by which complaints can be referred to State bar disciplinary
authorities when we suspect misconduct. The ABA supported SSA's concern
that all representatives be held to certain standards of practice and
conduct, but strongly advised that such standards comport with the ABA
Model Rules, and that they be applied only to those representatives who
would not otherwise be subject to the legal profession's rules of
conduct. One individual recognized that State bar rules are not
applicable to representatives who are not attorneys, but opined that
there are not enough non-attorney representatives to warrant standards
of conduct for non-attorneys.
Some attorney commenters suggested that non-attorney
representatives should be required to comply with State bar rules or
the ABA Model Code. A few attorneys suggested that non-attorneys be
barred from representing claimants before SSA. However, a few
commenters specifically agreed with us that both attorneys and non-
attorneys should have their conduct evaluated by the same criteria.
Response: Bar rules differ in language and format among the 50
States, the District of Columbia, Puerto Rico and the U.S. territories
and island possessions. As the administrator of a national program,
however, SSA should not be expected or required to apply local rules,
or local interpretations of the rules, to problems that require
national uniformity. If we applied local rules or local interpretations
rather than a national standard, it is conceivable that attorneys in
one area could be subject to discipline by SSA for conduct that another
jurisdiction would not find actionable, or vice versa. We do not
believe it benefits the attorneys, the claimants or SSA to have this
type of inconsistency in carrying out the Commissioner's statutory
obligation to regulate the conduct of representatives in administering
a nationwide program.
Moreover, attorneys often represent claimants in jurisdictions
other than those in which they are licensed to practice law. In those
instances, it would be unclear which jurisdiction's rules would apply,
which could lead to inconsistent application of the rules among
attorneys practicing in the same geographical area.
Furthermore, non-attorney representatives are not subject to any
rules of conduct for representatives similar to bar rules. Contrary to
one comment, individual non-attorney representatives and representative
organizations represent a substantial number of claimants. Within the
last eight years, suspension/disqualification actions against non-
attorneys comprised approximately 36 percent of SSA's representative
disciplinary actions. Therefore, it is essential to provide rules that
will govern the conduct of non-attorneys who practice before us.
Moreover, it is only fair and equitable to hold all representatives who
practice before us to the same standards.
In addition, applying our rules to only non-attorney
representatives is incompatible with the Commissioner's
[[Page 41409]]
statutory obligation to regulate the conduct of all representatives in
order to ensure that claimants are being represented competently and
fairly. Finally, we note that contrary to the suggestion that non-
attorneys be prohibited from acting as representatives, the Act allows
such representation.
Comment: Some commenters stated that there should be testing or
certification of representatives. Another commenter stated that SSA
should publish standards concerning the character, background, and
qualifications of non-attorney representatives.
Response: We have considered the possibility of testing or other
formal certification procedures for non-attorney representatives, but
we have determined that the idea is not feasible at this time. SSA
currently has standards for non-attorney representatives in
Secs. 404.1705 and 416.1505.
Any individual who provides services as a representative for a fee
shall be expected to demonstrate, in the performance of those services,
sufficient knowledge of the claims process to be of assistance to the
claimant. Ignorance of substantive provisions of law or procedural
requirements shall not be considered a mitigating factor for acts or
omissions which impede or disrupt the efficient and orderly disposition
of a claim.
Comment: One commenter offered that since no other Federal agency
has a code of conduct for representatives, it is unnecessary for SSA to
have one.
Response: We disagree with the premise of the comment and the
conclusion. The Internal Revenue Service has rules for practice before
it. See 31 CFR, Part 10. We also note that on November 25, 1997, the
Merit Systems Protection Board published an interim rule concerning
misconduct by representatives (62 FR 62689) which was finalized
recently at 63 FR 35499 (June 30, 1998). Furthermore, on January 20,
1998, the Department of Justice, Immigration and Naturalization Service
and the Executive Office for Immigration Review, published an NPRM to
change the rules and procedures concerning professional conduct for
practitioners, which includes attorneys and representatives (63 FR
2901). Moreover, whether other agencies have codes of conduct should
not be determinative. SSA has a responsibility to protect and preserve
our administrative processes, and by law may take any reasonably
necessary action in support of that obligation.
Comment: A few individuals commented on the issue of payment of
fees to non-attorneys and suggested that the prohibition against direct
payment of fees to non-attorneys should be removed. One commenter
suggested that non-attorneys should be required to sign retainer
agreements prior to representing claimants and should also be required
to submit itemized fee statements to SSA.
Response: These issues go beyond the purpose of these rules. The
intent in drafting these regulations was not to change the existing
statutory and regulatory provisions regarding payment of fees. However,
as stated in the NPRM, SSA is currently considering separate
regulations to address the issues of authorization, direct payment and
administrative review of fees for representation.
Comment: Other commenters suggested that a representative engaging
in prohibited or obstructive conduct be penalized by reduction in the
amount of the fee authorized.
Response: This issue also is not the subject of these rules. We may
address this issue in the separate regulations referred to in the
previous response.
Comment: We received various comments regarding the number of
complaints of misconduct by claimants' representatives investigated by
the Office of Hearings and Appeals. Several commenters believed that
the small number of complaints did not indicate a need for our proposed
standards of conduct for representatives. Another commenter stated that
our statistics underestimate the problem of inadequate representation
of claimants.
Response: Although we realize that most representatives do a
conscientious job in assisting their clients, we believe that there are
sufficient instances of misconduct to justify these standards of
conduct based on the referrals and complaints we have received. We also
observe, however, that many of the complaints we receive involve
misconduct by claimants' representatives that could not be addressed
under the prior regulations but can be addressed under these standards
of conduct. In addition, we anticipate that our standards of conduct
will result in more referrals of representative misconduct to the
Office of Hearings and Appeals.
Comment: Some commenters believed that SSA's decision to seek
discipline of a claimant's representative will be based on the Agency's
workload and will not be applied uniformly.
Response: Our decision to seek discipline of a claimant's
representative will be based solely on a representative's misconduct,
not SSA's workload. We also believe that the rules provide a strong
basis for uniform application of such actions and recognize our
obligation to effectively implement them in an even-handed, consistent
manner. Moreover, we believe that the rules clearly focus on the
responsibilities of a claimant's representative, including avoiding
unjustifiable delays that harm the processing of the claim. The rules
apply to claimants' representatives in all stages of our process and
all aspects of their representation before us.
Comment: Several commenters pointed out the delays in our
administrative decisionmaking process. Generally, observing that SSA is
under no time constraints in processing cases, they expressed the
belief that the delays result from Agency actions rather than
representative misconduct.
Response: The time it takes to decide claims in the administrative
process is influenced by many factors. We believe that our new rules
will enhance our efforts to improve the efficiency and timeliness of
our adjudication process. At the same time, in fairness, we will not
hold representatives accountable for matters solely within the control
of the Agency.
Comment: A few individuals observed that the new regulations would
put an unnecessary administrative burden on SSA and would create a new
bureaucracy. Others suggested that the rules would also place an
unwarranted burden on representatives and would have a chilling effect
upon representation.
Response: Although, as noted previously, these regulations may
result in our receiving additional complaints of misconduct, the
complaints will be handled by the same staff and in the same manner as
complaints filed under the prior regulations. As we have stated below
in response to similar comments, we do not believe that these
regulations place an unwarranted burden on representatives or
discourage representation. Instead, we believe that these rules will
improve the efficiency of our administrative process.
Comment: Several commenters complained about claimants'
representatives' lack of access to claim files, lost records, lack of
response from SSA to inquiries, and delay in obtaining records from
SSA.
Response: We agree that these issues are relevant, but they are
not directly related to the subject matter of these rules. We will, of
course, consider such extenuating circumstances in deciding whether
there was inappropriate delay or failure to adequately prepare and
present the claimant's case. As noted below, we will not hold a
representative
[[Page 41410]]
accountable for matters beyond his or her control.
Comment: Several commenters expressed concern that SSA employees,
including ALJs, may abuse the process by improperly finding violations
of the standards of conduct or by making unreasonable demands on
representatives.
Response: We believe that the internal checks and balances within
our operating procedures provide adequate safeguards against abuse of
discretion and/or arbitrary action. Furthermore, we note that the
determination on whether to file a complaint against a representative
for violating these regulations will be made by the Deputy Commissioner
for Disability and Income Security Programs (or other official the
Commissioner may designate), or his or her designee (hereinafter Deputy
Commissioner or designee), rather than by any other employee, including
an ALJ. Even after a complaint is served, a representative is entitled
to file an answer and petition for withdrawal of the complaint.
Thereafter, the accused party has a right to a full evidentiary
hearing, and a right to request review of the resulting decision. In
view of these elaborate safeguards, administered at each step by
independent decision makers, it is unlikely that an honest mistake or a
reasonable misunderstanding on the part of a representative would
result in sanctions.
Comment: Other commenters intimated that we are proposing these
rules to punish representatives or decrease the rate of representation.
Response: SSA neither encourages nor discourages representation.
Our sole purpose in proposing these regulations is to carry out our
statutory obligation to ensure that representatives, when utilized,
meet certain standards in their dealings with claimants and with us.
Comment: Other commenters suggested a code of conduct for SSA
employees, including ALJs.
Response: The suggestion is outside the scope and purpose of these
rules. All SSA employees, including ALJs, must conform their conduct to
government-wide standards of conduct. Any member of the public who
believes that any SSA employee has violated these standards should
report these violations to us. Additionally, we also have existing
procedures to address allegations of bias or misconduct on the part of
ALJs.
Comment: Several individuals commented on the issue of SSA's
ability to contact the claimant directly. One representative stated
that the proposed standards of conduct fail to point out what rules
apply to SSA employees who contact and, according to this commenter,
allegedly intimidate claimants although these claimants may be
represented. One attorney stated that in other legal matters such as
criminal or civil actions, it is improper to contact the client
directly. Another commenter stated that it was not true that SSA may
not contact a represented claimant directly. This individual stated
that SSA may do so in cases of fraud or similar fault or to resolve
discrepancies, and must do so to provide and explain rights and
responsibilities in connection with the filing of a claim.
Additionally, this individual observed that representatives should be
aware that SSA can and will make such contacts.
Response: SSA's general policy is that SSA makes all contacts with
a represented claimant in connection with prosecution of a claim
through, or with the permission of, the appointed representative.
However, SSA may contact the claimant directly: if the representative
asks SSA to deal directly with the claimant; or if SSA's records
indicate that the claimant is represented, but there is insufficient or
conflicting information regarding who the claimant's representative is;
or if an appointed representative's authority may have expired, but
there is insufficient information in the file or on the system to make
this determination accurately; or if the issue involves a possible
violation by the representative or the claimant. Also, because an
appointed representative's authority ordinarily does not extend to
signing an application on behalf of a claimant, SSA frequently does
have direct contact with a claimant during the claims-filing process.
Contacts other than as explained above are not in accordance with our
procedures, and we would certainly want to be told about employee
improprieties, such as alleged intimidation.
Comment: Several ALJs in one hearing office and the Association of
ALJs requested an additional rule dealing with withdrawal of
representation by representatives shortly before or on the date of the
hearing. They indicated that in no court may a representative withdraw
from a case without leave of court and that the absence of such a
requirement for SSA hearings results in additional delay and a waste of
time and money. These commenters propose a rule requiring the
representative to show good cause for withdrawal, or by allowing
withdrawal no later than six days after notice of hearing is issued
without having to show good cause.
Response: SSA's decisionmaking process is nonadversarial and
informal, and claimants do not require representation. The decision to
have a representative is the claimant's, and SSA neither encourages nor
discourages representation. A claimant may revoke the appointment of a
representative at any time. Likewise, a representative may withdraw
from representing a claimant at any time. Any rule limiting the
withdrawal of a representative would contravene SSA's basic policy on
representation. If a claimant still desires representation after his or
her representative withdraws, we will allow the individual time to
secure a new representative before we adjudicate the claim.
Comment: One ALJ suggested that SSA by regulation, or Congress
through statute, provide SSA ALJs with some form of limited contempt or
sanction powers to control the conduct of representatives and claimants
in addition to the proposed rules. The ALJ mentioned that recently
enacted legislation gave immigration judges the authority to sanction
by civil money penalty any action or inaction in contempt of the
judge's proper exercise of authority. The ALJ also cited a proposal to
give Department of Health and Human Services Departmental Appeals Board
ALJs sanction powers in civil monetary penalty cases. Another commenter
suggested that Secs. 404.1740(b) and 416.1540(b) should place an
affirmative duty on representatives to comply with prehearing orders.
According to this commenter, the regulation should indicate that the
ALJ has authority to issue and expect compliance with such prehearing
orders.
Response: SSA ALJs do not have contempt powers or sanction
authority, and we do not have legislation similar to that cited by the
commenter. SSA ALJs, on their own initiative, will not have the
authority to enforce these rules. Instead, as noted above, the
determination on whether to file a complaint against a representative
will be made by the Deputy Commissioner or designee. Finally, we
believe that giving contempt or sanction authority to ALJs does not
seem necessary or appropriate to SSA's informal, nonadversarial
proceedings which deal primarily with disability and retirement issues.
Comment: A frequent comment concerning the February 1995 draft was
that the proposed standards used terms that were too vague and
ambiguous, such as ``timely,'' ``diligence,'' ``as soon as possible''
and ``matters at issue.'' To be responsive to these concerns and
further clarify our requirements in the
[[Page 41411]]
NPRM, we modified the language that was most often identified as
ambiguous. However, we received comments on the NPRM that some of the
language continued to be vague and ambiguous.
Response: We have made further revisions to address these concerns
and, in some instances, have added language similar to that in model
codes of conduct. Attorneys are familiar with model code language, and
these codes have a long interpretive history of similar provisions and
language which can be used as guidance for both attorneys and non-
attorneys.
Comment: Some commenters found the entire substance of the proposed
standards to be ambiguous, although one believed they were drawn too
narrowly and should be expanded. Several argued that the proposals did
not provide adequate notice to representatives of the exact types of
conduct we would find to be in violation of these regulations.
Response: We believe that the rules, as revised, define with
sufficient specificity the types of conduct subject to regulation.
Similar to other standards of conduct (e.g., the ABA Model Rules),
these regulations do not list every act or omission which might
constitute a violation. Such a listing would be inappropriate to a
regulation and would be virtually impossible to complete given the
limitless factual situations involved in representing claimants.
Rather, we intend to deal with each complaint on a case-by-case basis
to determine whether, under the attending circumstances, a
representative engaged in actionable misconduct. In making this
determination we will evaluate whether a reasonable person, in light of
all the circumstances, would consider the act or omission violative of
the rule in question. Once it is determined that a formal complaint is
warranted, the Deputy Commissioner or designee reviews the proposal
independently from the investigative component and makes a decision
whether to file a complaint. Moreover, the individual or individuals
identifying the misconduct, whether an ALJ or other employee, will not
be the sanctioning authority or initiate the formal complaint.
Comment: The majority of the commenters objected to the revised
wording of proposed Secs. 404.1740(b)(1) and 416.1540(b)(1) which
required the representative to ``[p]romptly obtain all information and
evidence which the claimant wants to submit in support of the claim and
forward the same for consideration as soon as practicable, but no later
than the due date designated by the Agency, except for good cause
shown.'' Many commenters believed that this rule was overly broad and
would put an undue burden on representatives. They also believe that
these requirements and the ones contained in Secs. 404.1740(b)(2) and
416.1540(b)(2) are procedural rules which are inappropriate for ethical
standards governing the conduct of representatives.
Several representatives noted that they do not submit evidence
until the case is at the ALJ level because, according to them, so few
claims are allowed at the initial and reconsideration levels. Other
commenters noted that rather than improving the efficiency of the
process, this rule would add procedural barriers to the process by
setting up vague, unspecified deadlines by which all evidence must be
submitted.
A few commenters stated that ``evidence which the claimant wants to
submit in support of the claim'' should be defined. One commenter noted
that this requirement is impractical because claimants often want their
representatives to obtain and submit evidence that is 15 or 20 years
old or do not remember relevant information. Another commenter observed
that evidence is often incrementally discovered over a period of time
so that it is not reasonable to require that all evidence be submitted
by a specific date. An additional commenter pointed out that because
SSA is not required to complete any step of the administrative
decisionmaking process by a set deadline, it would be impossible for
the representative to decide when to request and submit the evidence
that would give the best chance of obtaining an award of benefits.
A number of commenters objected to the requirement that evidence be
submitted ``as soon as practicable'' or by the ``due date'' set by the
Agency. They believe that these terms are vague and lack the
specificity required in a rule governing conduct. One individual asked
whether there was any way to state a specific event or method for
determining due dates and noted that the proposed rules did not provide
any direction to SSA personnel as to how to select due dates. Several
commenters, including NOSSCR, stated that mandating due dates for
submission of evidence is equivalent to closing the record in
contravention of current law. One commenter noted that if the due date
is prior to the date of the adjudicator's determination, good cause
would have to exist as a matter of law to allow submission of evidence
related to the time period between the due date and the decision date.
Otherwise the result would be to close the record prior to the date of
the determination. Several commenters also observed that the term
``good cause'' is undefined, and there is no mechanism for determining
when good cause would apply.
Response: The claimant has a right to receive benefits under the
Act only after establishing that he or she satisfies the underlying
statutory and regulatory requirements. The NPRM envisioned that under
the new disability process, claimants would be expected to take a more
active role in establishing entitlement or eligibility for Social
Security benefits. The representative, as the designated agent of the
claimant, would likewise be called upon to play an even greater role in
assisting the claimant in processing the claim.
However, because SSA has not yet fully evaluated changes in the
role that the claimant will have to play, we have revised the language
concerning the duty of representatives in this area to conform with the
current regulatory requirements placed on claimants in general, and on
disability claimants in particular in Secs. 404.1512 and 416.912.
We note that in promulgating these rules, we have not changed our
existing duties and responsibilities with regard to developing the
record and obtaining the evidence necessary to adjudicate disability
and blindness claims. See section 223(d)(5)(B) of the Act and
Secs. 404.1512 and 416.912 and 404.1614 and 416.1014. Moreover, we are
not shifting the duty to claimants or representatives to develop the
record. Instead, these rules are intended to ensure that a
representative will assist the claimant in complying with his or her
responsibilities to provide us information and evidence under our
regulations. Although this requirement has not been previously included
in the regulations, we believe that this assistance is an integral part
of representation and has always been our expectation.
Accordingly, we have revised Secs. 404.1740(b)(1) and
416.1540(b)(1) to clarify that the representative will be expected to
assist the claimant in submitting the evidence that the claimant wishes
to have considered by SSA. In deleting the requirement that the
evidence be submitted by a specific due date, we have acknowledged the
possible difficulties that claimants and representatives may face in
obtaining evidence. Furthermore, although we did not intend the rules
to have the effect of closing the record, some individuals have
mistakenly interpreted the due date requirement as an improper attempt
to achieve that goal. Therefore, deletion of the due date requirement
[[Page 41412]]
should remove any confusion regarding this issue.
Nevertheless, we expect the representative to assist the claimant
in submitting evidence on a timely basis. This means that the
representative should make a reasonable effort to promptly obtain and
organize the available, supporting evidence and submit it to SSA for
the earliest possible consideration. Every claimant is entitled to the
earliest possible decision on as complete a record as possible at every
stage of our process. SSA's commitment to claimant service relies on
the availability of necessary evidence at the earliest possible stage
in the process so that we can make an accurate and fair determination
without delay caused by the need to obtain additional evidence.
In assessing any allegation raised against a representative
regarding failure to assist the claimant under these rules, we will
consider the efforts taken to assist the claimant in submitting
evidence. The rules apply both to disability and nondisability claims,
with additional rules applying to disability claims. A representative
will be expected to make reasonable, not extraordinary, efforts to
obtain and submit evidence on a timely basis. We recognize that in
providing representational services to a claimant, the representative
may advise the claimant concerning the need to submit particular
evidence. Also, we recognize that some claimants may be unable to
effectively consult with their representatives regarding what evidence
should be submitted and that the representative may be required to act
on the claimant's behalf to ensure that the relevant evidence is
available to the adjudicator. In addition, we have added to these
regulations a reference to ``good cause'' when a representative is
unable to submit such evidence (as defined in Secs. 404.911(b) and
416.1411(b)), to provide examples of situations in which good cause may
exist. ``Good cause'' will be determined in the administrative
proceeding initiated by the Deputy Commissioner or designee to consider
whether there was misconduct by the representative.
Comment: The majority of commenters objected to the affirmative
duties specified in Secs. 404.1740(b)(2) and 416.1540(b)(2) on the
basis that SSA was attempting to improperly delegate to claimants and
representatives its own duty to develop the record, which could place
representatives at the mercy of arbitrary or unreasonable SSA requests
for information. Specifically, a number of commenters observed that
this rule conflicts with SSA's duty to develop the record pursuant to
sections 223(d)(5)(B) and 1614(a)(3)(H) of the Act and Secs. 404.1512
and 416.912. Other commenters cited possible conflicts with
Secs. 404.1519a and 416.919a, and one commenter cited a possible
conflict with Social Security Ruling 96-2p. A few commenters observed
that the duty to develop the record must remain with SSA because the
proceedings are nonadversarial, and the focus is on claimants who are
seeking benefits when they are vulnerable. Several commenters also
pointed out that the language did not allow for discretion in
situations involving uncooperative treating physicians and
uncooperative or uneducated claimants.
Several commenters took exception to the statement in the NPRM that
under the proposed redesigned disability process, claimants and
representatives would be expected to take a more active role in
developing the record. They believed that the proposed rules imposed
new requirements on representatives when the duties placed on claimants
themselves have not been changed. A few commenters also noted that
applying different standards to represented and unrepresented claimants
with regard to the rules for submission of evidence would violate equal
protection.
Noting some improvement from the February 1995 draft, the ABA and
other commenters nevertheless believed that the proposed rules were
vague and overly broad and interpreted them as giving Agency staff the
right to demand that the representative produce copies of almost any
client information and records, at any time after the claim was filed,
with no effort to limit the scope, the relevance or the frequency of
the requests. The ABA and a number of other commenters noted that
frequent demands for repeated updating of the medical information from
each treating physician would cause unnecessary expense to claimants
and inconvenience to the party from whom the information is sought. A
few commenters expressed confusion about the meaning of the term ``may
readily obtain'' and questioned whether representatives would also be
required to obtain consultative examinations that are now obtained by
SSA. Citing the time taken to decide claims in SSA's administrative
process, a number of commenters observed that they may be forced to
update evidence on a regular basis while waiting up to a year or more
for a determination on the claim.
As with regard to Secs. 404.1740(b)(1) and 404.1540(b)(1), a number
of commenters objected to the requirements that evidence be submitted
``as soon as practicable'' or by the ``due date'' set by the Agency on
the basis that these terms are vague and undefined. They also believe
that setting deadlines for submission of evidence requested by SSA
would result in improper closure of the record.
Response: As we did with regard to Secs. 404.1540(b)(1) and
416.912(b)(1) above, we have revised the language concerning the duty
of representatives in this area to conform with our current regulatory
requirements for both disability and nondisability claims in general,
and in particular the requirements in disability and blindness claims
placed on claimants in Secs. 404.1512 and 416.912. Therefore, we have
revised this rule to clarify that the representative is required to
assist the claimant in complying, as soon as practicable, with our
requests for information and evidence at any stage of the
administrative decisionmaking process pursuant to Secs. 404.1512(c) and
416.912(c). This includes the obligation to provide evidence regarding
the items listed therein. In our view, the provisions of
Secs. 404.1740(b)(2) and 416.1540(b)(2) require the representative to
comply with our requests made under statutory authority for full and
accurate disclosure of material facts to the same extent that the
claimant is required to do so.
As stated above, we have not changed our existing duties and
responsibilities with regard to developing the record and obtaining the
evidence necessary to adjudicate claims, nor are we shifting any duty
to claimants or representatives to develop the record. These rules are
intended to ensure that a representative will assist the claimant in
complying with his or her responsibilities under our regulations.
As we did in Secs. 404.1740(b)(1) and 416.1540(b)(1), we have
deleted the requirement that the information and evidence be submitted
by the ``due date'' designated by the Agency. However, as noted above,
we do expect the representative to assist the claimant in submitting
the evidence and information requested by SSA on a timely basis. This
means that the representative should make a reasonable effort to obtain
and organize the available evidence and submit it to SSA for the
earliest possible consideration. This will facilitate our goal to
ensure that we make a correct determination at the earliest stage of
the process.
In assessing any allegation raised against a representative
regarding failure to assist the claimant in complying with our request
for information, we will consider the reasonableness of the request,
the relevance of the information requested, and any factors that may
[[Page 41413]]
interfere with the procurement of requested information. For example,
if a representative has made several attempts to obtain the requested
information from the claimant or another source without receiving a
response, we will likely determine that such efforts are in compliance
with our rules.
Comment: Many commenters raised the issue of who must pay to obtain
medical records. A number of individuals cited the high costs of
obtaining medical records from physicians and hospitals and noted that
many claimants would be unable to pay such costs. Some attorneys
expressed concern that they may be required to advance funds for
records and that this may be in contravention of State bar rules.
Response: We are not changing our existing rules concerning payment
for evidence. We will continue to pay for the medical records that we
need to adjudicate claims pursuant to our existing regulations.
Comment: Many of the attorney commenters on the February 1995 draft
stated that compliance with proposed Secs. 404.1740(b)(2) and
416.1540(b)(2), which in the February 1995 draft asked representatives
to ``[p]romptly comply, at every stage of the administrative review
process, with our requests for information and evidence,'' might place
them in violation of their own State bar rules requiring zealous
advocacy and protection of confidential client information. As stated
in the NPRM, based on these preliminary comments, we modified proposed
Secs. 404.1740(b)(2) and 416.1540(b)(2) to permit representatives to
protect a client's confidentiality by notifying SSA that ``the claimant
does not consent to release of some or all of the [requested]
material.'' This language in the NPRM caused many commenters, including
the ABA, to state that the proposed revision would ``red flag'' this
evidence and permit ALJs and SSA to draw adverse inferences based on
the statement of the claimant's declination to release the material.
The commenters believed that this issue raised serious ethical concerns
and observed that notifying SSA of the claimant's refusal to submit
evidence could subject them to sanction by their State bar associations
for failing to protect the confidences and secrets of their clients.
Specifically, one commenter noted that this provision would put
attorneys at odds with the State Bar of Georgia's Standard #28 which
provides that ``[a] lawyer may not reveal the secrets and confidences
of a client.'' Similarly, another commenter cited a conflict with
California Business and Professional Code section 6068 subsection (e),
which requires an attorney ``to maintain inviolate the confidence, and
at every peril to himself or herself to preserve the secrets, of his or
her client.'' Additionally, the ABA cited a potential conflict with
Model Rule 1.6 which prohibits an attorney from revealing client
information without the client's consent.
Conversely, a number of commenters, notably ALJs, felt that the
proposed revision would create a privilege from disclosure for
claimants where none was intended and no privilege currently exists.
The ALJs found this to be extremely troublesome and noted that it would
result in decisions that are based on an incomplete evidentiary record.
Additionally, one commenter observed that it is unrealistic to
expect a representative to engage in a consultation with the claimant
in the short timeframe in which the claimant would be expected to
exercise an informed decision on whether to release or withhold
information. Other commenters noted that some medical and psychiatric
reports are stamped with clear warnings that they should not be
disclosed to the claimant. Therefore, it could be harmful if the
representative was required to discuss such a report with the claimant
to determine if the claimant would give consent for release.
Response: Because of the confusion and ethical concerns surrounding
this proposed language, we have removed it from the final regulations
and inserted language which reflects the currently existing regulatory
requirements concerning the claimant's and the representative's
obligations in terms of responding to our requests. As explained above,
in disability and blindness claims, this language is in conformity with
the existing requirements of Secs. 404.1512 and 416.912.
Comment: Some commenters expressed concerns about how proposed
Secs. 404.1740(b)(3)(i) and 416.1540(b)(3)(i), which deal with a
representative's duty to be cognizant of the matters at issue, as well
as evidentiary and procedural requirements, would be applied. They
specifically posed questions about whether lack of knowledge of one
procedural rule or disagreement with an ALJ over the application of a
particular standard or rule would be enough to cause a complaint to be
filed against a representative.
Response: We revised Secs. 404.1740(b)(3)(i) and 416.1540(b)(3)(i)
to clarify our expectations regarding the knowledge and preparation
required to represent claimants before us. We based this revision on
ABA Model Rule 1.1 which requires competent representation. We also
added language specifying that a representative should know the
significant issue(s) in a claim and have a working knowledge of the
applicable provisions of the Act, the regulations and the Rulings.
However, this does not mean that a representative has to know every
provision.
Furthermore, we will deal with each complaint on a case-by-case
basis to determine whether a representative engaged in actionable
conduct. We will determine whether a reasonable person, in light of all
the circumstances, would consider the act or omission violative of the
section of the regulation in question.
Comment: One commenter was confused about the meaning of
Secs. 404.1740(b)(3)(ii) and 416.1540(b)(3)(ii) and asked whether
``information pertinent to the processing of the claim'' would require
a representative to investigate issues such as whether the claimant was
engaging in part-time work.
Response: We revised this section to clarify the requirement that
the representative must promptly respond to our requests for
information concerning the claim. We based this revision on ABA Model
Rule 1.3 which requires reasonable diligence and promptness. In
applying this rule, we will not expect the representative to
investigate the claim or to obtain information that is not readily
available. Instead, the rule is intended to ensure that representatives
are responsive to our inquiries so that the processing of the claim
will not be delayed pending a response from the representative on the
claimant's behalf. There is no time limit on when responses must be
provided, but a representative should promptly respond. Furthermore,
``information pertinent to processing the claim'' means the information
and evidence that the claimant, with the assistance of the
representative, as required, should submit under the current statutory
and regulatory requirements.
Comment: One commenter believed that Secs. 404.1740(b)(3)(iii) and
416.1540(b)(3)(iii) may raise an ethical problem for an attorney who
may be put in the position between demonstrating good cause by showing
that the claimant is unavailable and possibly uncooperative or risking
a finding by SSA that the attorney is acting unethically.
Response: We deleted this section from the final regulations
because we believe that cooperation by the
[[Page 41414]]
representative is inherent in the competent and diligent representation
of a claimant. With regard to a showing of ``good cause,'' this would
occur in a proceeding separate from the claims process. Therefore, it
would not impair the representative's ethical duty to his or her
client.
Comment: The ABA commented that although Secs. 404.1740(c) and
416.1540(c) were an improvement over the earlier draft and began to
define the conduct that would be considered objectionable, the proposed
rules were still vaguely worded.
Response: As discussed below, where appropriate, we have revised
the provisions of these sections to clarify the conduct that we will
consider to be inappropriate.
Comment: An ALJ expressed concern about misstatements of fact or
occurrences by representatives in their arguments before the Appeals
Council. The ALJ suggested that we add a provision to Secs. 404.1740(c)
and 416.1540(c) prohibiting a representative from making any incorrect
statement about a proceeding or persons involved in a proceeding before
SSA. The ALJ further suggested that this provision should make it clear
that a ``material fact within our jurisdiction'' is to be read much
more broadly than facts affecting the outcome of the case and should
also include matters such as the conduct of the hearing, performance of
the ALJ and other SSA personnel and the testimony of impartial
witnesses.
Response: We decided not to adopt this suggestion. We believe that
the language of Secs. 404.1740(c)(3) and 416.1540(c)(3) adequately
addresses our intent to prevent false statements concerning a claim at
any stage in our process. Furthermore, if we added such a provision, we
believe that SSA could be subject to disputes concerning the actual
``correctness'' of statements made about SSA personnel, including ALJs.
In order to more closely track the statutory requirements, we revised
this section to add a prohibition against ``misleading'' statements.
Comment: One commenter objected to Secs. 404.1740(c)(1) and
416.1540(c)(1) on the basis that these sections conflict with
Secs. 404.1740(b)(2)(i) and 416.1540(b)(2)(i), which require the
representative to ask for the client's consent to release the evidence
needed for adjudication. The commenter believed that requesting the
claimant's consent would be the equivalent of coercing the claimant by
using the representative's relationship with the claimant to direct a
decision or action by the claimant.
Response: For the reasons discussed in our response above, we have
deleted Secs. 404.1740(b)(2)(i) and 416.1540(b)(2)(i) from the final
regulations. A representative would never have been required to coerce
a claimant in order to comply with any of the affirmative duties
specified in the rules, and our deletion of these sections should
clarify the matter. We also note that Secs. 404.1740(c)(1) and
416.1540(c)(1) are based on the prohibitions set forth in section
206(a)(5) of the Act and are self-explanatory.
Comment: We received comments which indicated the perception that
Secs. 404.1740(c)(2) and 416.1540(c)(2) would somehow change the
statutory, regulatory and administrative authorities and requirements
for submitting, evaluating and paying requests for approval of fees
under the fee petition or fee agreement procedures.
Response: That is not the import or intent of these sections. As we
stated in the NPRM, these sections are based on the provisions of
sections 206(a) and (b) and 1631(d)(2) of the Act and apply to all fee
collections.
Comment: With regard to Secs. 404.1740(c)(4) and 416.1540(c)(4),
the ABA and other commenters stated that while SSA should not tolerate
improper delays, representatives should not be subjected to sanction
while acting in good faith and for purposes other than delay. The ABA
noted that this rule fails to set forth a standard by which to measure
the reason for the delay. Other commenters noted that the use of the
word ``negligent'' is inappropriate and could subject a representative
to sanction for missing only one deadline or by missing a deadline by
only one day. One individual suggested that we add language prohibiting
conduct resulting in delay for a significant period of time. Another
commenter noted that this section creates a prohibited action which is
beyond the control of the representative because all time limits are
under the exclusive control of SSA. One commenter suggested that we
define good cause to include any basis upon which a representative
negligently or inadvertently failed to complete a required action.
Another commenter stated that the ALJ has the sole authority to
determine whether good cause would apply. An additional commenter
suggested that we include language from the preamble indicating how
these sections will be applied to the final regulations.
Response: We revised these sections to clarify that representatives
through their own actions or omissions should not unreasonably delay
the processing of a claim. In addition, we deleted ``willfully or
negligently'' and added a reference to Secs. 404.911(b) and 416.1411(b)
which set forth examples of ``good cause.'' Furthermore, we reiterate
that SSA does not intend to penalize representatives for reasonable or
justifiable delays or delays that may occur even when reasonable care
is taken in preparing the claim.
In determining whether a representative has violated this rule, we
will look at the gravity of the representative's conduct, the
consequences to the claimant, whether the behavior represents a pattern
or practice and other factual circumstances related to the matter. This
section is intended to prohibit intentional conduct or conduct that
evinces a failure to apply a reasonable standard of care in
representing the claimant, e.g., conduct that results in an
unreasonable delay, not a minor wait. We also note that representatives
will not be held accountable for delays in our administrative
decisionmaking process. Additionally, as stated above, the
determination of whether to file a complaint for violation of this or
any other regulation governing the conduct of representatives will be
made by the Deputy Commissioner or designee.
Comment: A few individuals and the ABA expressed concern about the
intent of Secs. 404.1740(c)(5) and 416.1540(c)(5). The commenters
questioned whether this rule would apply to information about the
claimant or other persons and whether it would allow the representative
to release the claimant's medical reports to the claimant's treating
source. Another commenter believed that this rule was an attempt to
interfere with the attorney-client relationship. The same individual
also opined that this rule runs contrary to the provisions of the
Privacy Act and the recent amendments to the Freedom of Information
Act.
Response: Similar language was included in the prior regulations at
Secs. 404.1740(d) and 416.1540(d). This rule is based on section 1106
of the Act, which prohibits disclosure by any person of information
obtained from the Agency in conjunction with a claim, except as may be
authorized by our regulations or as otherwise determined by Federal
Law. It is intended to prevent a representative from improperly
disclosing information received from SSA, without the claimant's
consent, in contravention of our regulations. We have deleted the
reference to information about another person to clarify that
disclosure is warranted only
[[Page 41415]]
with the consent of the claimant or as otherwise authorized by Statute
or our regulations.
Comment: One commenter was confused about the meaning of
Secs. 404.1740(c)(6) and 416.1540(c)(6) and questioned whether these
sections would prohibit actions such as a law firm's discussing
possible employment opportunities with SSA employees or social
interactions between ALJs and private attorneys outside of work hours.
Response: This rule is intended to prevent the fact or appearance
of attempting to influence the disposition of a claim by offering or
giving something of value to an individual in a position to materially
affect the outcome of the case. It is not intended to apply to conduct
unrelated to the adjudication of claims.
Comment: Several commenters, including the ABA and NOSSCR, objected
to Secs. 404.1740(c)(7) and 416.1540(c)(7) on the basis that these
sections are vague and would interfere with an advocate's ability to
zealously represent his or her client. The commenters believe that this
rule does not provide an objective standard indicating what is
permissible and what is not. The ABA also observed that the proposed
limitations raised First Amendment concerns regarding freedom of
speech.
A few commenters noted that it may be appropriate for an attorney
to ``threaten'' to appeal an ALJ's decision and to point out errors
made by the ALJ during the hearing. A few individuals also opined that
a representative who points out matters of ignorance or impropriety by
the ALJ may be subject to allegations of discourteous behavior by the
same ALJ. Another commenter observed that this rule is unnecessary
because in most cases, the parties act appropriately.
Response: In response to these concerns, we modified the language
in Secs. 404.1740(c)(7)(iii) and 416.1540(c)(7)(iii) to prohibit
threatening or intimidating language or conduct ``which results in a
disruption of the orderly presentation and reception of evidence.'' We
realize that zealous advocacy may require vigorous argument and that it
may be appropriate for an advocate to point out errors during the
proceeding or to take exception to the conduct of the proceeding. This
rule is not intended to interfere with or limit an advocate's ability
to argue the case on behalf of his or her client if done in a
professional manner. Instead, this provision is intended to address
blatantly offensive or disruptive conduct or language that prevents the
adjudicator from conducting the proceeding in a manner that results in
a full examination of the evidence and the testimony presented. We must
ensure that the proceeding is conducted in an appropriate manner and is
not disrupted by individuals who engage in conduct or language which
prevents the full consideration of the issues to be decided.
In determining whether a representative has violated this rule, we
will look at the totality of the circumstances, including the
egregiousness of the conduct, its impact on the claimant or the Agency,
possible provocation and whether the behavior reflects a pattern or
practice. By setting a threshold of disruption of the proceeding, we
have set a standard high enough to avoid infringing on zealous, strong
advocacy. Finally, to address concerns that ALJs or other individuals
may improperly find violations of this provision, we again note that
ALJs will not make the determination of whether to file a complaint
against a representative and that instead, the decision will be made by
the Deputy Commissioner or designee.
Comment: A few individuals asked questions such as whether a
representative can request instructional advice from SSA to avoid
violating these rules or question our determination to file a
complaint.
Response: In order to ensure that representatives understand these
rules and comply with them, we welcome requests for information and
guidance from individual representatives. Furthermore, as under our
current procedures, representatives will be given an opportunity to
respond to charges that they have violated these rules. In many cases,
we should be able to resolve the problem through informal means such as
written or oral counselling of the representative, making a formal
complaint unnecessary. In some cases, a representative may not be aware
that his or her conduct has resulted in a violation of these
regulations and once advised of the violation will conform with our
rules. As under the current regulations, if the Deputy Commissioner or
designee determines that a complaint should be filed against a
representative, the Deputy Commissioner or designee will send the
representative a notice containing a statement of the charges that
constitute the basis for the proceeding. The representative will have
30 days to file an answer stating why he or she should not be
disqualified from acting as a representative. The representative will
also have the opportunity for a hearing on the charges.
Accordingly, for the reasons set out above, the proposed rules are
being published as final rules with the revisions as noted.
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these rules do not meet the criteria for a
significant regulatory action under Executive Order 12866. Thus, they
were not subject to OMB review.
Regulatory Flexibility Act
We certify that these regulations will not have a significant
economic impact on a substantial number of small entities. The
provisions of the rules that involve entities were developed to allow
them to provide representational services without generating any
supplemental reporting requirements. These rules will not result in any
increased legal, accounting or consulting costs to small businesses or
small organizations, will not adversely affect competition in the
marketplace, or create barriers to entry on the part of small entities.
In fact, these rules may facilitate such entry into the representation
sphere. The regulations will provide uniform standards applicable to
all entities who engage in the business and tend to disqualify the
unscrupulous and the incompetent practitioners, thereby expanding
demand for others willing and able to perform the service. Therefore, a
regulatory flexibility analysis as provided in the Regulatory
Flexibility Act, as amended, is not required.
Paperwork Reduction Act
These regulations impose no reporting/recordkeeping requirements
necessitating clearance by OMB.
(Catalog of Federal Domestic Assistance Program Nos. 96.001,
Social Security-Disability Insurance; 96.002, Social Security-
Retirement Insurance; 96.004, Social Security-Survivors Insurance;
96.006, Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Old-Age, Survivors and Disability Insurance, Reporting and
recordkeeping requirements, Social Security.
20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public assistance programs, Supplemental Security Income
(SSI),
[[Page 41416]]
Reporting and recordkeeping requirements.
Dated: July 24, 1998.
Kenneth S. Apfel,
Commissioner of Social Security.
For the reasons set forth in the preamble, part 404, subpart R, and
part 416, subpart O, chapter III of title 20 of the Code of Federal
Regulations are amended as set forth below.
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950-- )
Subpart R--[Amended]
1. The authority citation for subpart R of part 404 continues to
read as follows:
Authority: Secs. 205(a), 206, and 702(a)(5) of the Social
Security Act (42 U.S.C. 405(a), 406, and 902(a)(5)).
2. Section 404.1740 is revised to read as follows:
Sec. 404.1740 Rules of conduct and standards of responsibility for
representatives.
(a) Purpose and scope. (1) All attorneys or other persons acting on
behalf of a party seeking a statutory right or benefit shall, in their
dealings with us, faithfully execute their duties as agents and
fiduciaries of a party. A representative shall provide competent
assistance to the claimant and recognize the authority of the Agency to
lawfully administer the process. The following provisions set forth
certain affirmative duties and prohibited actions which shall govern
the relationship between the representative and the Agency, including
matters involving our administrative procedures and fee collections.
(2) All representatives shall be forthright in their dealings with
us and with the claimant and shall comport themselves with due regard
for the nonadversarial nature of the proceedings by complying with our
rules and standards, which are intended to ensure orderly and fair
presentation of evidence and argument.
(b) Affirmative duties. A representative shall, in conformity with
the regulations setting forth our existing duties and responsibilities
and those of claimants (see Sec. 404.1512 in disability and blindness
claims):
(1) Act with reasonable promptness to obtain the information and
evidence that the claimant wants to submit in support of his or her
claim, and forward the same to us for consideration as soon as
practicable. In disability and blindness claims, this includes the
obligations to assist the claimant in bringing to our attention
everything that shows that the claimant is disabled or blind, and to
assist the claimant in furnishing medical evidence that the claimant
intends to personally provide and other evidence that we can use to
reach conclusions about the claimant's medical impairment(s) and, if
material to the determination of whether the claimant is blind or
disabled, its effect upon the claimant's ability to work on a sustained
basis, pursuant to Sec. 404.1512(a);
(2) Assist the claimant in complying, as soon as practicable, with
our requests for information or evidence at any stage of the
administrative decisionmaking process in his or her claim. In
disability and blindness claims, this includes the obligation pursuant
to Sec. 404.1512(c) to assist the claimant in providing, upon our
request, evidence about:
(i) The claimant's age;
(ii) The claimant's education and training;
(iii) The claimant's work experience;
(iv) The claimant's daily activities both before and after the date
the claimant alleges that he or she became disabled;
(v) The claimant's efforts to work; and
(vi) Any other factors showing how the claimant's impairment(s)
affects his or her ability to work. In Secs. 404.1560 through 404.1569,
we discuss in more detail the evidence we need when we consider
vocational factors; and
(3) Conduct his or her dealings in a manner that furthers the
efficient, fair and orderly conduct of the administrative
decisionmaking process, including duties to:
(i) Provide competent representation to a claimant. Competent
representation requires the knowledge, skill, thoroughness and
preparation reasonably necessary for the representation. This includes
knowing the significant issue(s) in a claim and having a working
knowledge of the applicable provisions of the Social Security Act, as
amended, the regulations and the Rulings; and
(ii) Act with reasonable diligence and promptness in representing a
claimant. This includes providing prompt and responsive answers to
requests from the Agency for information pertinent to processing of the
claim.
(c) Prohibited actions. A representative shall not:
(1) In any manner or by any means threaten, coerce, intimidate,
deceive or knowingly mislead a claimant, or prospective claimant or
beneficiary, regarding benefits or other rights under the Act;
(2) Knowingly charge, collect or retain, or make any arrangement to
charge, collect or retain, from any source, directly or indirectly, any
fee for representational services in violation of applicable law or
regulation;
(3) Knowingly make or present, or participate in the making or
presentation of, false or misleading oral or written statements,
assertions or representations about a material fact or law concerning a
matter within our jurisdiction;
(4) Through his or her own actions or omissions, unreasonably delay
or cause to be delayed, without good cause (see Sec. 404.911(b)), the
processing of a claim at any stage of the administrative decisionmaking
process;
(5) Divulge, without the claimant's consent, except as may be
authorized by regulations prescribed by us or as otherwise provided by
Federal law, any information we furnish or disclose about a claim or
prospective claim;
(6) Attempt to influence, directly or indirectly, the outcome of a
decision, determination or other administrative action by offering or
granting a loan, gift, entertainment or anything of value to a
presiding official, Agency employee or witness who is or may reasonably
be expected to be involved in the administrative decisionmaking
process, except as reimbursement for legitimately incurred expenses or
lawful compensation for the services of an expert witness retained on a
non-contingency basis to provide evidence; or
(7) Engage in actions or behavior prejudicial to the fair and
orderly conduct of administrative proceedings, including but not
limited to:
(i) Repeated absences from or persistent tardiness at scheduled
proceedings without good cause (see Sec. 404.911(b));
(ii) Willful behavior which has the effect of improperly disrupting
proceedings or obstructing the adjudicative process; and
(iii) Threatening or intimidating language, gestures or actions
directed at a presiding official, witness or Agency employee which
results in a disruption of the orderly presentation and reception of
evidence.
3. Section 404.1745 is revised to read as follows:
Sec. 404.1745 Violations of our requirements, rules, or standards.
When we have evidence that a representative fails to meet our
qualification requirements or has violated the rules governing dealings
with us, we may begin proceedings to suspend or disqualify that
individual from acting in a representational capacity before us. We may
file charges
[[Page 41417]]
seeking such sanctions when we have evidence that a representative:
(a) Does not meet the qualifying requirements described in
Sec. 404.1705;
(b) Has violated the affirmative duties or engaged in the
prohibited actions set forth in Sec. 404.1740; or
(c) Has been convicted of a violation under section 206 of the Act.
4. Section 404.1750 is amended by revising paragraphs (a) and (d)
to read as follows:
Sec. 404.1750 Notice of charges against a representative.
(a) The Deputy Commissioner for Disability and Income Security
Programs (or other official the Commissioner may designate), or his or
her designee, will prepare a notice containing a statement of charges
that constitutes the basis for the proceeding against the
representative.
* * * * *
(d) The Deputy Commissioner for Disability and Income Security
Programs (or other official the Commissioner may designate), or his or
her designee, may extend the 30-day period for good cause.
* * * * *
5. Section 404.1765 is amended by revising paragraph (a), the
second sentence of paragraph (e), and paragraph (g)(3) to read as
follows:
Sec. 404.1765 Hearing on charges.
(a) Scheduling the hearing. If the Deputy Commissioner for
Disability and Income Security Programs (or other official the
Commissioner may designate), or his or her designee, does not take
action to withdraw the charges within 15 days after the date on which
the representative filed an answer, we will hold a hearing and make a
decision on the charges.
* * * * *
(e) Parties. * * * The Deputy Commissioner for Disability and
Income Security Programs (or other official the Commissioner may
designate), or his or her designee, shall also be a party to the
hearing.
* * * * *
(g) * * *
(3) If the representative did file an answer to the charges, and if
the hearing officer believes that there is material evidence available
that was not presented at the hearing, the hearing officer may at any
time before mailing notice of the hearing decision reopen the hearing
to accept the additional evidence.
* * * * *
6. Section 404.1770 is amended by revising the first sentence of
paragraph (a)(3) and paragraph (b)(3) to read as follows:
Sec. 404.1770 Decision by hearing officer.
(a) * * *
(3) The hearing officer shall mail a copy of the decision to the
parties at their last known addresses. * * *
(b) * * *
(3) If the final decision is that a person is suspended for a
specified period of time from being a representative in dealings with
us, he or she will not be permitted to represent anyone in dealings
with us during the period of suspension unless authorized to do so
under the provisions of Sec. 404.1799.
7. Section 404.1799 is amended by revising the first sentence of
paragraph (c) and the second sentence of paragraph (e) to read as
follows:
Sec. 404.1799 Reinstatement after suspension or disqualification--
period of suspension not expired.
* * * * *
(c) The Deputy Commissioner for Disability and Income Security
Programs (or other official the Commissioner may designate), or his or
her designee, upon notification of receipt of the request, shall have
30 days in which to present a written report of any experiences with
the suspended or disqualified person subsequent to that person's
suspension or disqualification. * * *
* * * * *
(e) * * * It shall also mail a copy to the Deputy Commissioner for
Disability and Income Security Programs (or other official the
Commissioner may designate), or his or her designee.
* * * * *
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart O--[Amended]
8. The authority citation for subpart O of part 416 continues to
read as follows:
Authority: Secs. 702(a)(5) and 1631(d) of the Social Security
Act (42 U.S.C. 902(a)(5) and 1383(d)).
9. Section 416.1540 is revised to read as follows:
Sec. 416.1540 Rules of conduct and standards of responsibility for
representatives.
(a) Purpose and scope. (1) All attorneys or other persons acting on
behalf of a party seeking a statutory right or benefit shall, in their
dealings with us, faithfully execute their duties as agents and
fiduciaries of a party. A representative shall provide competent
assistance to the claimant and recognize the authority of the Agency to
lawfully administer the process. The following provisions set forth
certain affirmative duties and prohibited actions which shall govern
the relationship between the representative and the Agency, including
matters involving our administrative procedures and fee collections.
(2) All representatives shall be forthright in their dealings with
us and with the claimant and shall comport themselves with due regard
for the nonadversarial nature of the proceedings by complying with our
rules and standards, which are intended to ensure orderly and fair
presentation of evidence and argument.
(b) Affirmative duties. A representative shall, in conformity with
the regulations setting forth our existing duties and responsibilities
and those of claimants (see Sec. 416.912 in disability and blindness
claims):
(1) Act with reasonable promptness to obtain the information and
evidence that the claimant wants to submit in support of his or her
claim, and forward the same to us for consideration as soon as
practicable. In disability and blindness claims, this includes the
obligations to assist the claimant in bringing to our attention
everything that shows that the claimant is disabled or blind, and to
assist the claimant in furnishing medical evidence that the claimant
intends to personally provide and other evidence that we can use to
reach conclusions about the claimant's medical impairment(s) and, if
material to the determination of whether the claimant is blind or
disabled, its effect upon the claimant's ability to work on a sustained
basis, pursuant to Sec. 416.912(a);
(2) Assist the claimant in complying, as soon as practicable, with
our requests for information or evidence at any stage of the
administrative decisionmaking process in his or her claim. In
disability and blindness claims, this includes the obligation pursuant
to Sec. 416.912(c) to assist the claimant in providing, upon our
request, evidence about:
(i) The claimant's age;
(ii) The claimant's education and training;
(iii) The claimant's work experience;
(iv) The claimant's daily activities both before and after the date
the claimant alleges that he or she became disabled;
(v) The claimant's efforts to work; and
(vi) Any other factors showing how the claimant's impairment(s)
affects his or her ability to work, or, if the claimant is a child, his
or her functioning. In
[[Page 41418]]
Sec. Sec. 416.960 through 416.969, we discuss in more detail the
evidence we need when we consider vocational factors; and
(3) Conduct his or her dealings in a manner that furthers the
efficient, fair and orderly conduct of the administrative
decisionmaking process, including duties to:
(i) Provide competent representation to a claimant. Competent
representation requires the knowledge, skill, thoroughness and
preparation reasonably necessary for the representation. This includes
knowing the significant issue(s) in a claim and having a working
knowledge of the applicable provisions of the Social Security Act, as
amended, the regulations and the Rulings; and
(ii) Act with reasonable diligence and promptness in representing a
claimant. This includes providing prompt and responsive answers to
requests from the Agency for information pertinent to processing of the
claim.
(c) Prohibited actions. A representative shall not:
(1) In any manner or by any means threaten, coerce, intimidate,
deceive or knowingly mislead a claimant, or prospective claimant or
beneficiary, regarding benefits or other rights under the Act;
(2) Knowingly charge, collect or retain, or make any arrangement to
charge, collect or retain, from any source, directly or indirectly, any
fee for representational services in violation of applicable law or
regulation;
(3) Knowingly make or present, or participate in the making or
presentation of, false or misleading oral or written statements,
assertions or representations about a material fact or law concerning a
matter within our jurisdiction;
(4) Through his or her own actions or omissions, unreasonably delay
or cause to be delayed, without good cause (see Sec. 416.1411(b)), the
processing of a claim at any stage of the administrative decisionmaking
process;
(5) Divulge, without the claimant's consent, except as may be
authorized by regulations prescribed by us or as otherwise provided by
Federal law, any information we furnish or disclose about a claim or
prospective claim;
(6) Attempt to influence, directly or indirectly, the outcome of a
decision, determination or other administrative action by offering or
granting a loan, gift, entertainment or anything of value to a
presiding official, Agency employee or witness who is or may reasonably
be expected to be involved in the administrative decisionmaking
process, except as reimbursement for legitimately incurred expenses or
lawful compensation for the services of an expert witness retained on a
non-contingency basis to provide evidence; or
(7) Engage in actions or behavior prejudicial to the fair and
orderly conduct of administrative proceedings, including but not
limited to:
(i) Repeated absences from or persistent tardiness at scheduled
proceedings without good cause (see Sec. 416.1411(b));
(ii) Willful behavior which has the effect of improperly disrupting
proceedings or obstructing the adjudicative process; and
(iii) Threatening or intimidating language, gestures or actions
directed at a presiding official, witness or Agency employee which
results in a disruption of the orderly presentation and reception of
evidence.
10. Section 416.1545 is revised to read as follows:
Sec. 416.1545 Violations of our requirements, rules, or standards.
When we have evidence that a representative fails to meet our
qualification requirements or has violated the rules governing dealings
with us, we may begin proceedings to suspend or disqualify that
individual from acting in a representational capacity before us. We may
file charges seeking such sanctions when we have evidence that a
representative:
(a) Does not meet the qualifying requirements described in
Sec. 416.1505;
(b) Has violated the affirmative duties or engaged in the
prohibited actions set forth in Sec. 416.1540; or
(c) Has been convicted of a violation under section 1631(d) of the
Act.
11. Section 416.1550 is amended by revising paragraphs (a) and (d)
to read as follows:
Sec. 416.1550 Notice of charges against a representative.
(a) The Deputy Commissioner for Disability and Income Security
Programs (or other official the Commissioner may designate), or his or
her designee, will prepare a notice containing a statement of charges
that constitutes the basis for the proceeding against the
representative.
* * * * *
(d) The Deputy Commissioner for Disability and Income Security
Programs (or other official the Commissioner may designate), or his or
her designee, may extend the 30-day period for good cause.
* * * * *
12. Section 416.1565 is amended by revising paragraph (a), the
second sentence of paragraph (e), and paragraph (g)(3) to read as
follows:
Sec. 416.1565 Hearing on charges.
(a) Scheduling the hearing. If the Deputy Commissioner for
Disability and Income Security Programs (or other official the
Commissioner may designate), or his or her designee, does not take
action to withdraw the charges within 15 days after the date on which
the representative filed an answer, we will hold a hearing and make a
decision on the charges.
* * * * *
(e) Parties. * * * The Deputy Commissioner for Disability and
Income Security Programs (or other official the Commissioner may
designate), or his or her designee, shall also be a party to the
hearing.
* * * * *
(g) * * *
(3) If the representative did file an answer to the charges, and if
the hearing officer believes that there is material evidence available
that was not presented at the hearing, the hearing officer may at any
time before mailing notice of the hearing decision reopen the hearing
to accept the additional evidence.
* * * * *
13. Section 416.1599 is amended by revising the first sentence of
paragraph (c) and the second sentence of paragraph (e) to read as
follows:
Sec. 416.1599 Reinstatement after suspension or disqualification--
period of suspension not expired.
* * * * *
(c) The Deputy Commissioner for Disability and Income Security
Programs (or other official the Commissioner may designate), or his or
her designee, upon notification of receipt of the request, shall have
30 days in which to present a written report of any experiences with
the suspended or disqualified person subsequent to that person's
suspension or disqualification. * * *
* * * * *
(e) * * * It shall also mail a copy to the Deputy Commissioner for
Disability and Income Security Programs (or other official the
Commissioner may designate), or his or her designee.
* * * * *
[FR Doc. 98-20760 Filed 8-3-98; 8:45 am]
BILLING CODE 4190-29-P
